Costigan v. Hall

The following opinion was filed September 28, 1946: There is a motion for rehearing. Counsel for movants argues that the court decided the case upon the mistaken idea that the defendants were required to set up in their answer the existence of the statutory facts necessary to authorize the transportation of children to a parochial school at public expense. The case was decided upon two grounds. Ruling (1) was that in the Van StratenCase, 180 Wis. 109, 192 N.W. 392, the court held that the statute there involved only authorized the transportation of children to a public school, and the present statute, sec. 40.34 (2) is of the same import. We adhere to that ruling, and this is sufficient to require denial of the motion for rehearing. The rule of the Van Straten Case has stood for twenty-three years without amendment of the statute rendering that rule inapplicable and we consider that we should not now overrule that decision.

Counsel complains that the opinion wrongly states that he "concedes" that the Van Straten Case, supra, was correctly decided upon the statute as it stood when the case was decided. He is right in saying he did not so concede in his brief, but according to our recollection he is wrong in implying that he did not so concede in his argument. However, whether he so conceded is immaterial. We adhere to our ruling (1).

Counsel suggests that the opinion is erroneous because it is based on the idea that the defendants were obliged to set up in their answer the facts essential to invoke the statute relating to suspension of a district school. In so far as the opinion so implies it is erroneous and the portion of the opinion so implying is withdrawn. This however does not affect the correctness of ruling (1), and that ruling being adhered to the motion for rehearing, as heretofore stated, must be denied.

Counsel argues that the order appealed from is erroneous because it denies to the defendants leave to submit an amended answer. The trial court in the exercise of its discretion withheld permission to amend the answer. We discover no grounds upon which it can be said that the trial court in so doing abused its discretion.

Motion denied without costs.